Md. high court strikes down DNA collection at arrest

Yvonne Wenger, The Baltimore Sun

Maryland's highest court on Tuesday blocked police in most cases from collecting DNA samples when they arrest suspects in violent crimes and burglaries, dealing a blow to one of Gov. Martin O'Malley's signature initiatives.

The Court of Appeals ruled 5-2 that the state violated Alonzo Jay King Jr.'s constitutional rights by using DNA evidence taken from him after a 2009 assault arrest. That sample led to his conviction in a six-year-old rape case, but the court said it also ran afoul of protections against unreasonable searches without a warrant. The judges ordered that King's rape case be sent back to Wicomico County Circuit Court for a new trial.

O'Malley and law enforcement officials said the decision would set back the state's crime-fighting efforts, but civil liberties advocates and defense attorneys called it a victory for individual freedoms. The state can still collect DNA after convictions, and experts said the court's ruling is unlikely to reverse other convictions.

"It makes clear that there are limits on the government's ability to collect DNA from people who are not convicted of a crime," Rocah said. "I am very glad that the court has finally put up a roadblock to the continued expansion [of DNA collection]."

O'Malley, a Democrat, said he was saddened by the court's decision, noting that it came during Victims' Rights Month. The governor said the law was one of the state's most valuable crime-fighting tools and that he has not ruled out an appeal to the Supreme Court.

"The concept is simple: When we increase the library of DNA samples in our state, we solve more crimes," O'Malley said in a statement. "We take more criminals off the streets more quickly and put them in jail for a longer period of time so that they cannot murder, rape or harm other citizens among us."

The state has collected nearly 16,000 DNA samples since the law took effect in January 2009 and used that evidence to gain 58 convictions, including in 34 burglaries and eight rapes. The court did not address whether the state could retain the samples on file.

The case centered on the conviction of King, now 29, in the rape of a 53-year-old woman in her Salisbury home in 2003. His DNA had been collected when he was arrested on first- and second-degree assault charges in 2009.

While King's assault trial was pending, his DNA was entered into a statewide database and linked to the rape. He was convicted of first-degree rape and received a life sentence; he also was found guilty in the 2009 assault. On Tuesday, the high court reversed the rape conviction; the second-degree assault conviction stands.

Margaret Mead, a criminal defense attorney, said the public might not like the court's decision but the ruling was the right one in a country where individuals are innocent until proven guilty.

"Anybody can get arrested," Mead said. "When you understand how easy it is for someone to be charged, you would never give up your fight from government's unreasonable searches and seizures."

"The governor and the state's attorneys in Maryland worked very hard to get this bill passed, because we really thought, and still think, that it is a great crime-fighting tool," Shellenberger said. "We feel like this is an important public safety measure that has been put in place in Maryland."

Brian Kleinbord, chief of the criminal appeals division of the attorney general's office, declined to say whether the state would appeal.

"We're very concerned about the court's ruling, and we're looking at it with an eye toward further review," Kleinbord said.

Though several state courts have found taking DNA samples from those arrested but not convicted unconstitutional, by and large federal courts have upheld such laws.

In July, the U.S. Court of Appeals for the Third Circuit, which handles federal appeals in New Jersey, Delaware and Pennsylvania, upheld the federal law that allows sampling of DNA from those arrested. That ruling does not set precedent for Maryland cases.

The defendant in that case, Ruben Mitchell, was indicted on one count of attempted possession of cocaine with intent to distribute. The court held that taking his DNA upon arrest was similar to fingerprinting, a long-standing method used by authorities to identify those in custody. Plus, the court said, those arrested have a diminished expectation of privacy and the collection of DNA enhances the accuracy of criminal investigations and prosecutions.

Federal courts in Colorado, New York and California have come to similar conclusions. Last month, the Supreme Court decided not to hear Mitchell's case, allowing the Court of Appeals' decision to stand.

Virginia's high court concluded in 2007 that the collection of DNA from a man arrested on suspicion of rape was constitutional. But state courts in Minnesota and California have held that such DNA collection laws violate constitutional protections under the Fourth Amendment.

This year, legislators in Washington and Wisconsin have been considering passage of similar DNA sampling laws.

The decision by the Maryland court does not strike down the entire law, leaving open the possibility of law enforcement agencies using DNA samples to make sure the person they arrested is indeed the suspect.

"Although we have some trepidation as to the facial constitutionality of the DNA act, as to arrestees generally, we cannot exclude the possibility that there may be, in some circumstances, a need for the state to obtain a DNA sample to identify an arrestee accurately," the judges wrote in the majority decision.

In a dissenting opinion, Judges Mary Ellen Barbera and Alan M. Wilner wrote, "The majority arrives at this decision by overinflating an arrestee's interest in privacy and underestimating the state's interest in collecting arrestee DNA, and in doing so, plays fast and loose with the well-recognized test for determining the constitutionality of warrantless searches."